Australian Senate hearings reveal public opposition to "terrorism" laws

By Mike Head27 April 2002

Hearings before a Senate committee have demonstrated considerable opposition
among ordinary people, as well as a broad range of organisations, to the package
of “counter-terrorism” legislation that the Howard government will attempt to
push through parliament next month.

The unprecedented legislation has received virtually no coverage in the media
and the Senate Legal and Constitutional Committee set a time limit of less than
two weeks for comment on five major Bills. Nevertheless, the committee has
received a near-record number of submissions expressing grave concerns about the
undermining of political freedoms, basic democratic rights and civil
liberties.

The government has seized upon the terrorist attacks in the United States
last September 11 and the Bush administration’s ongoing “war on terrorism” to
bring forward the most far-reaching measures against free speech and political
rights since World War II. The legislation imposes lengthy jail terms, including
life imprisonment, for a wide range of terrorism, treason and espionage
offences—all defined in vague and sweeping terms—and reverses the presumption of
innocence for some of these new crimes.

The legislation will outlaw many traditional means of political protest. For
example, mass pickets, blockades, sit-ins or other acts of civil
disobedience—which may involve minor infringements of the law—can be defined as
terrorism and become punishable by life imprisonment because they involve “a
political, religious or ideological cause”. A person who merely possesses a
document or thing that has been used to prepare or commit an alleged terrorist
act—perhaps a leaflet advertising a rally—can be jailed for life.

The Bills will empower the attorney general, without any parliamentary or
judicial scrutiny, to ban political parties and other organisations that he
considers “have endangered or are likely to endanger the security or integrity”
of Australia or any other country. A person who in any way “assists” a
proscribed body faces 25 years jail. Anyone who “assists” an organisation that
has become involved in hostilities with the Australian armed forces can be
charged with treason and sentenced to life imprisonment.

Another Bill, which initially has been shunted off to a separate committee,
will enable the Australian Intelligence Security Organisation (ASIO) to detain
people in police custody without charge, hold them incommunicado, deny access to
legal advice, strip-search detainees and interrogate them in detention for at
least six days, and possibly longer.

As many of the submissions have suggested, the laws have nothing to do with
protecting the Australian people against terrorism. In the first place, the
government has admitted repeatedly that it has no evidence of specific terrorist
threats. But even if a threat existed, any conceivable terrorist activity—such
as a bombing, hijacking, kidnapping or assassination—is already a serious crime
under existing law.

Senate hearings provide only a rarified, highly formal and somewhat
intimidating forum for people to protest against the government’s plans.
Moreover, the committee process is designed to allow the major parties, the
Liberal-National Coalition and Labor, to fine-tune their proposals in the hope
of heading off broader unrest. Nevertheless, submissions have poured in. The
committee’s chairperson has so far publicly acknowledged the receipt of more
than 350 submissions but an official said the total ran into the hundreds, with
20 arriving per day, well after the official April 5 deadline.

Sweeping powers

Among the organisations objecting to the laws, either in full or part, were
Amnesty International, the NSW and Victorian Councils of Civil Liberties, the
Uniting Church, the Islamic Council, the Ethnic Communities Council, the
Australian Council of Trade Unions (ACTU), the Law Council of Australia (the
legal profession’s peak body), community legal centres, environmental groups,
political parties and legal and other academics.

The Law Council warned that the attorney general could ban widely-supported
groups, such as Amnesty International, Community Aid Abroad, the National
Council of Churches and the Human Rights Council of Australia. It described the
definition of terrorism as “unacceptably broad, imprecise and unwieldy”. The
lawyers’ body condemned the introduction of “absolute liability” into
determining guilt. Under the legislation, “it is no defence that the accused
acted honestly and reasonably”. Scholars, researchers and journalists could be
jailed for innocently possessing documents relating to terrorism.

The Ethnic Communities Council of Victoria said there were “tremendous
concerns” within immigrant communities that people could be jailed for
“assisting” terrorists or an “enemy” by donating to help support widows, orphans
and other victims of overseas conflicts. People who were called in for
interrogation or charged with offences could lose all their family assets trying
to defend themselves. The Islamic Council pointed to media vilification of Arab
and Muslim people and expressed concern that the legislation could lead to the
type of persecution and racial profiling already witnessed in the United
States.

A Uniting Church branch voiced concern that “someone who simply expresses
public support for a proscribed organisation would face imprisonment for their
opinions... this provision has the potential to violate Australia’s obligations
as a State Party of the International Covenant on Civil and Political Rights
with regard to the right to freedom of expression and association”.

Liberty Victoria denounced the legislation for “proscribing thought”. Its
representative, Julian Burnside QC, warned that pickets and public
demonstrations against the use of attack dogs and thugs during the 1998
waterfront dispute could have been classed as terrorism, and that trade unions
such as the Construction Forestry Mining and Energy Union (CFMEU) could be
proscribed for involvement in the 1996 storming of federal parliament. A legal
academic stated that people who blocked the entrances to Melbourne’s Richmond
Secondary College and defied police during the early 1990s campaign to halt the
school’s closure could have suffered similar consequences.

Constitutional law professor George Williams wrote: “The Terrorism Bill is
similar in design to the Communist Party Dissolution Act 1950. That Act granted
the Governor General an unfettered and unreviewable power to declare an
organisation to be unlawful or a person to be a communist.” The High Court held
that Act to be unconstitutional and the Menzies government’s 1951 referendum to
amend the constitution was defeated, striking an important blow for free
speech.

The NSW Council for Civil Liberties said the proposed definition of
membership of an association was so broad that an organisation could be outlawed
because of a violent act by an individual who falsely claimed to represent the
organisation. This measure will create enormous scope for frame-ups and
provocations, particularly by police and intelligence agents, although the
Council did not make that point.

“Reminiscent of Nazi Germany”

One of the first individual submissions came from a Sydney woman, who stated:
“I am totally opposed to the ASIO Powers and Anti-Terrorism Legislation that the
government has introduced to the Australian Parliament. I believe that this
legislation poses a threat to civil liberties and violates international human
rights conventions...

“The creation of new offences of terrorism which could encompass some union
activities, civil disobedience and dissent provides the government with
opportunities to misuse its powers. History shows that the Australian government
has been adept in doing this in the past.

“The anti-terrorism legislation which allows ASIO to detain people
incommunicado for up to 48 hours without charges without the right of silence
and without access to a lawyer is quite draconian and reminiscent of Nazi
Germany.”

A NSW man protested against the short time given to citizens to examine the
legislation and the lack of any public meetings to discuss it. He objected to
many features of the legislation, including ASIO’s detention power. “The right
to legal representation and the right to silence are fundamental rights which
should never be set aside for any purpose in a democratic society.”

Another submission denounced the power to proscribe organisations, comparing
it to the 1950-51 bid to ban the Communist Party. “This rehash of the failed
1950s process must astonish those with some knowledge of Australian history. And
this in the face of NO particular threat to the country! Banning organisations
by executive decree and with no need for proof must rank as one of the most vile
ambit claims of the present federal government...

“The subsidiary proposed offence of ‘assisting’ a proscribed organisation is
as appalling and objectionable as the original proposed offence. Why should a
decent citizen NOT assist an organisation subject to such a vile, arbitrary and
repressive law? The proposed law invites civil assistance to any such banned
organisation as a matter of civil duty, to defend basic civil liberties. I
certainly reserve my right to do so—but apparently the present government thinks
this should incur a penalty of 25 years imprisonment.”

A Melbourne woman wrote: “It is my belief that the Bills being proposed are
not really going to be used to defend Australia against terrorism, rather they
will use the ‘war against terrorism’ against voices of dissent within the
Australian community. I believe that terrorism, murder and all acts of violence
are evil, however, the creation of new terrorist offences and the banning of any
group ‘likely to endanger the security or integrity of the Commonwealth or any
other country’ is liable to be applied to any number of community organisations
that ensure social equality and environmental stability.”

Another submission commented: “Basic safeguards of freedom from arbitrary
arrest should not be compromised in this way, or the state itself becomes a
terrorist. To quote Benjamin Franklin in his Historical Review of
Pennsylvania, 1759: ‘They that can give up essential liberty to obtain a
little temporary safety deserve neither liberty nor safety’.”

The government has made it plain that it will proceed with the legislation
regardless of these concerns. At the committee’s last hearing, in Canberra on
April 19, top-ranking government, intelligence and law enforcement officials
responded to the submissions by vehemently defending the legislation.

ASIO director-general Dennis Richardson insisted that the so-called war on
terrorism required permanent changes to the legal structure. “11 September was
not a blip on the security landscape which will simply fade into history,” he
declared. “It has changed the security environment, and those changes will be
with is for some years. The US and its partners are engaged in a protracted
war—or whatever word one want to use.”

Likewise, senior officers from the Attorney General’s Department rejected
criticism of the breadth and uncertainty of the language used in the Bill,
insisting that they and the government must have full discretion to decide
whether to prosecute for terrorism or treason offences.

The government is confident that it can push the Bills through parliament
with the support of the Labor Party. One notable feature of the Senate committee
hearings was Labor Senator Jim McKiernan’s browbeating of witnesses and strident
defence of key provisions in the legislation.

At one point, for example, McKiernan rounded on a Uniting Church
representative for suggesting that if organisations were to be banned, it should
require a parliamentary vote, rather than an executive decision by the attorney
general. “If there was a need for some parliamentary action in the banning of an
organisation that was clearly engaging in a terrorist-type activity, it would be
a bit much to have to wait six months, four months or five months to do that,
would it not?” he asked.

The Senate committee has been given until May 3 to report on the five Bills.
Labor and Australian Democrat Senators may suggest minor amendments to placate
opposition to the measures. Regardless of any token modifications, however, the
essential purpose of the legislation will be to criminalise many forms of
political dissent.